C-327/97

APOSTOLIDIS AND OTHERS V COMMISSION

OPINION OF ADVOCATE GENERAL MISCHO delivered on 24 June 1999 *

1. This case concerns an appeal by 65 4. Until the adoption of Council Regula- officials and former officials of the Com- tion (ECSC, EC, Euratom) No 3161/94 of mission, employed at the European Insti- 19 December 1994 adjusting, with effect tute for Transuranic Elements in Karlsruhe, from 1 July 1994, the remuneration and Germany, against a judgment of the Court pensions of officials and other servants of of First Instance on 10 July 19971 (the the European Communities and the weight- 'contested judgment'). ings applied thereto, 3 the weighting applied to the remuneration of the appli- cants employed at Karlsruhe was that applicable to officials employed at Bonn, which was the capital of the Federal Republic of Germany until October 1990. 2. All those persons were also applicants in the case which gave rise to the judgment of the Court of First Instance in Chavane de Dalmassy and Others v Commission 2 (the 'Chavane de Dalmassy' judgment). The method of implementing that judgment is at the root of this case. 5. After Berlin then became the capital of Germany, the Commission submitted draft regulation [SEC (91) 1612 final] to the Council on 4 September 1991, proposing that, with retrospective effect from 1 Octo- 3. Under Article 64 of the Staff Regulations ber 1990, a new weighting should be of officials of the European Communities calculated for Germany on the basis of ('the Staff Regulations') and Article 20 of the cost of living in Berlin and specific the Conditions of Employment of other weightings should be fixed for Bonn and servants of the European Communities, the Karlsruhe. remuneration of officials and temporary servants is adjusted by a weighting deter- mined by reference to the cost of living in their place of employment, so that, what- ever that cost of living, they enjoy equal purchasing power. 6. On 19 December 1991, the Council adopted Regulation (ECSC, EEC, Euratom) * Original language: French. No 3834/91 adjusting, with effect from 1 Apostolidis and Others v Commission [1997] ECR-SC I-A- 207 and II-607 2 Case T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECR-SC I-A-227 and II-723. 3 OJ 1994 L 335, p. 1.

9. Following the delivery of that judgment, on 9 December 1994, the Commission 12. On 5 May 1995, the applicants sub­ drew up a first proposal for Council mitted a request to the Commission under regulation [SEC (94) 2024 final] with a Article 90(1) of the Staff Regulations, view to the 'annual adaptation' of officials' requesting, firstly, that their pay slips since remuneration and pensions, fixing the January 1992 be drawn up on the basis of weightings to be applied as from 1 July the statutorily applicable weighting, sec­ ondly, for a declaration that the Commis­ sion erred by not adopting within a reason­ 4 OJ 1991 L 361, p. 13, corrigendum in OJ 1992 L 10, p. 56. able time the measures required by the

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Chavane de Dalmassy judgment pursuant 16. It is important to view the disputed line to Article 176 of the EC Treaty (now of argument in the context of the reasoning Article 233 EC) and, thirdly, for the pay- of the Court of First Instance. The Court ment of BFR 50 000 to each applicant by did not state that the applicants had way of compensation for non-material suffered no damage through non-applica- damage. tion to their remuneration of the weighting calculated by reference to Berlin. Having held that it was not possible in law to grant it to them, the Court examined, in accor- dance with the case-law,5 whether the applicants had suffered damage justifying compensatory measures, given the impos- 13. That request having been rejected, the sibility of satisfying their principal claim. applicants brought an action against the rejection decision, which was in turn dis- missed by the contested judgment.

25. In particular, they have not at any time 21.1 therefore consider that the commence­ challenged the figures put forward by the ment of the Chavane de Dalmassy case is Commission which show that, over the not the standpoint in time from which the whole of the period under consideration, applicants' interest in bringing these pro­ the cost of living was slightly higher in ceedings should be assessed. Bonn than in Karlsruhe and that, conse­ quently, the application claimed by the applicants of a weighting other than that calculated by reference to the cost of living in Bonn could not have brought them a 22. Moreover, the case-law which the material advantage, but on the contrary a applicants cite in support of their argument loss. concerned a different situation. 6 In this case, the action has been dismissed as inadmissible because the interest in bring­ ing an action disappeared, the contested decision having already been replaced 26. It is true that, by implication at least, before the action was brought. the applicants seem to see a material loss in the fact that they did not enjoy the weighting for Berlin, but rather the lower weighting calculated by reference to Bonn. Since, however, as we shall see, the Court of First Instance held that claim to be unjus­ 23. Thus, at the time the action was tified, on the ground that it conflicted with brought, there was no longer any interest in bringing it. However, that was the date the whole purpose of weightings, its failure which had to be taken as the standpoint in to materialise cannot constitute material time from which to assess that interest. loss justifying compensatory measures for the benefit of the applicants.

30. They argue, moreover, that the Com- 35. The alleged non-material damage mission is responsible for a number of therefore arises from the fact that the organisational failures in their regard, applicants were not granted the benefit of causing them non-material damage. Such the weighting calculated by reference to damage has therefore been established Berlin for the annulled payslips. On that sufficiently clearly by the applicants, who, point, however, the Court of First Instance by definition, could give nothing more than had already held in its judgment in Barraux a fair estimate. and Others v Commission7 that, in such circumstances, the applicants would profit from an undue advantage.

31. The Court of First Instance was there- fore wrong to reach the opposite conclu- sion in paragraphs 79 to 81 of the contested 36. Confirming that case-law, the Court of decision. First Instance again held, in the contested judgment, that that claim was clearly unjustified. It therefore made no error in law by holding that failure of such a claim to materialise cannot constitute non-mate- rial damage. 32. In my opinion, the applicants are misconstruing the connection between their claim for compensation in respect of non- 7 Case T-177/95 Barraux and Others v Commission [1996] material damage and their principal claim. ECR-SC I-A-541 and II-1451.

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OPINION OF MR MISCHO — CASE C-327/97 Ρ

37. Having thus rightly held that the appli­ interpretation of the judgment of the Court cants had not established the reality of their of First Instance in Chavarte de Dalmassy. damage, the Court of First Instance drew the necessary consequences regarding the provisions of its Rules of Procedure.

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the rules relied on and the Chavarte de that capital to fix the weighting applicable Dalmassy judgment meant that the Council to the country concerned. was under two obligations which were inseparably linked and that the Commis- sion was not entitled to disregard them in order to satisfy the applicants' claim. It maintains that it cannot therefore be accused of any failure to act in the matter whatsoever. 49. Secondly, it requires it to fix specific weightings for places of employment of officials situated in that country where an appreciable distortion in the cost of living is found to exist in relation to the capital.

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power had been determined by comparison sufficient level to undermine equality of with the cost of living in the capital, Berlin.' treatment.

56. If the Council's obligation were limited 52. The use of the terms 'on the one to fixing a weighting calculated by refer­ hand ... on the other' undeniably reveals a ence to the cost of living in the capital and link between the two parts of the sentence did not include the fixing of specific in question; they need to be understood weightings for places of employment where together in order to determine the full appreciable distortions are found, there content of the Council's obligation. would be no certainty that that the aim of equal treatment of officials, implying the neutralisation of those distortions, would be attained.

53. That evidence is confirmed by the very objective of weightings. They are not 57. Article 9 of Annex XI to the Staff designed automatically to bring about an Regulations leaves no doubt in that regard, increase in the applicants' remuneration since it provides that, where such distor­ where the cost of living in the capital of the tions are found, 'the Council ... shall Member State where they are employed decide' to fix specific weightings. The use increases. of the word 'shall' clearly shows the imperative nature of the Council's obliga­ tion. 8

54. Article 64 of the Staff Regulations and Annex XI thereto, containing rules for 58. That is also apparent from the settled implementing Articles 64 and 65, show case-law of the Court of Justice, which has that weightings are intended, as the term held that: implies, to correct the effects of differences in the cost of living in the various places of employment, so as to safeguard equality of treatment between officials. 'the purpose of Articles 64 and 65 of the Staff Regulations ... is to ensure that all officials have equivalent purchasing power, wherever their place of employment, in accordance with the principle of equality of treatment'. 55. It necessarily follows that the Council is obliged to fix weightings where differ­ ences in the cost of living between the 8 The other language versions of that provision use similar various places of employment reach a terms.

62. That consideration is irrelevant in this case. It is not a question here of demon- strating that the Commission could have no certainty as to the weightings which the 66. Nor do the applicants anywhere deny Council would fix. the existence, referred to by the Commis- sion in its proposals for a regulation for the 9 Case C-301/90 Commission v Council [1992] ECR I-221, paragraphs 22 and 25. 10 Joined Cases T-17/89, T-21/89 and T-25/89 Brazzelli and 11 See Barraux and Others v Commission, cited in paragraph 53 Others v Commission [1992] ECR II-293. above, and at paragraph 66 of the contested judgment.

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purpose of fixing a specific weighting for 70. It follows from the above that the Karlsruhe, of a significant difference in the Court of First Instance was right to hold cost of living between that city and Berlin. that the Commission was not entitled to draw up pay slips for the applicants by reference to the cost of living in Berlin, since the distortion found in relation to Berlin made it obligatory for the Council to fix a specific weighting for Karlsruhe.

67. They say, indeed, that 'the Council's refusal to adopt the proposal submitted by the Commission conveys its wish to apply the "Germany" weighting, calculated by reference to the cost of living in Berlin, to 71. The Court of First Instance was there­ officials employed in Karlsruhe'. 1 2 fore right to hold that there was no failure to act on the part of the Commission.

79. Where such a difficulty arises, the case- law holds 13 that it is for the institution concerned to take such decision as will provide due compensation for a disadvan- tage which has resulted for the applicants 75. It therefore only remains for me to from the annulled decision. examine whether the Court of First Instance should have held that the Com- mission was required, in the circumstances of the case, to open a dialogue with the applicants concerning compliance with the Chavarte de Dalmassy judgment. 80. The applicants deduce therefrom that, if the Commission considered that it faced a particular difficulty in complying with the Chavarte de Dalmassy judgment, it should have opened a dialogue with them in order to resolve the situation, rather than refrain- ing from taking any position.

76. The Court of First Instance begins by noting that, in accordance with that judg- ment, the Commission was unable, where a legislative measure had not been adopted 81. However, such a dialogue only had any by the Council, to apply a different weight- reason to come into being if the situation ing to the applicants' remuneration from arising for the applicants from non-com- that required by the legislation in force and pliance with the Chavarte de Dalmassy thus, in particular, a weighting calculated judgment caused them loss. by reference to the cost of living in Berlin.

82. The case-law cited by the applicants themselves requires the institution con- cerned, in the event of particular difficulty 77. It has already been seen that the Court of First Instance was right to reach that conclusion. 13 See the judgment in Parliament v Meskens, cited above.

85. It was therefore right to conclude that the Commission was not obliged to take compensatory measures for the benefit of 87. The Council considers that it might be applicants, and could not therefore be deduced from those statements of the Court accused of any failure to act in that regard. of First Instance that the Council, the author of the regulation of which applica­ tion had been set aside in the Chavarte de Dalmassy case through operation of the objection of illegality, was under an obliga­ tion to adopt a new regulation. 86. The Council states, in its reply, that it shares the conclusions which the Court of First Instance reached. It does, however, challenge the reasoning of the Court in paragraphs 60 and 61 of the contested judgment, worded as follows: 88. The Council submits that the case-law on Article 184 of the Treaty shows that not to be so. It maintains that a distinction should be made between the annulment of a legislative measure, entailing in principle 'Where the Community judicature annuls a an obligation to replace it, and the applica­ measure taken by an institution, that insti­ tion of the objection of illegality, the only tution is obliged under Article 176 of the consequence of which is to make it neces-

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sary, in a given case, to set aside the 93. It is therefore only as a subsidiary legislative provisions serving as a basis for remark that I say I do not share the the individual measure under challenge. Council's anxieties. What the Court of First Instance says is that 'mere adoption of Regulation No 3161/94 does not, a priori,14 constitute sufficient compliance with the Chavarte de Dalmassy judgment'.

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97. In the light of the above, the applicants' tions, is to ensure that all officials have second plea in law must also be dismissed. equivalent purchasing power, wherever their place of employment, in accordance with the principle of equality of treatment.

The third plea in law

101. It is undeniable, and moreover not challenged by the applicants themselves, that during the period in question the cost 98. This plea alleges infringement of Arti­ of living in Karlsruhe was considerably cle 63 et seq. of the Staff Regulations lower than that in Berlin. Therefore, to concerning the remuneration of officials. apply to the remuneration of staff Under the case-law, the applicants main­ employed in Karlsruhe a weighting calcu­ tain, those provisions require that, in the lated by reference to the cost of living in absence of a fixing by the Council of a Berlin would clearly be contrary to the specific weighting for Karlsruhe, their principles following from the case-law cited remuneration should be subject to a above. weighting calculated by reference to the cost of living in the capital of the Member State of employment.

99. I entirely share the Commission's ana­ 102. It follows from the above that the lysis that that plea clearly disregards the Court of First Instance did not infringe purpose of the provisions on weightings in Article 63 et seq. of the Staff Regulations the Staff Regulations. by deciding that the Commission was not in a position to apply to the applicants' remuneration a weighting calculated by reference to the cost of living in Berlin.

105. Concerning costs, it should be noted that, by virtue of the reference in Article 118 of the Rules of Procedure of the Court of Justice, Article 69 of those rules applies in this case, subject to the provisions of Article 122.

106. Article 69(2) provides that an unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. That is not the case here.

107. Under Article 69(4), institutions which intervene are to bear their own costs.

108. I therefore propose that each of the parties should bear its own costs.

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